Madhya Pradesh High Court
Julphakar Ali vs The State Of Madhya Pradesh on 31 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 31 st OF MAY, 2024
WRIT PETITION No. 9049 of 2024
BETWEEN:-
JULPHAKAR ALI S/O SHRI SAYED SADIQUE ALI, AGED
ABOUT 60 YEARS, OCCUPATION: WORKING AS
ASSISTANT GRADE 2 PLOT NO 13 JANTA COLONY GALI
NO 2 CHHINDWARA DISTRICT CHHINDWARA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI DHARMESH CHATURVEDI- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE COMMISSIONER JANJATI KARYA VIBHAG
DISTRICT BHOPAL (MADHYA PRADESH)
2. MANAGING DIRECTOR, UDAM VIKASH
SANSTHAN 35 SHYAMLA HILLS RAJEEV GANDHI
BHAWAN BHOPAL (MADHYA PRADESH)
3. ASSISTANT COMMISSIONER, JANJATIYA KARYA
VIBHAG CHHINDWARA CHHINDWARA (MADHYA
PRADESH)
4. ASSISTANT MANAGER, UDAM VIKASH
SANSTHAN, BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(MS. GULAB KALI PATEL - GOVERNMENT ADVOCATE FOR STATE AND
SHRI QUAZI FAKHRUDDIN - ADVOCATE FOR RESPONDENT NO.4)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner has approached this Court by preferring instant writ petition
under Article 226 of the Constitution of India for extending the benefit of
Ordinance/Act of 2018, whereby the M.P. Government enhanced the age of
superannuation from 60 to 62 years. The petitioner who is working in Udam
Vikas Sansthan, Bhopal on the post of Assistant Grade-II and his date of
superannuation is 31.5.2024 i.e. today, has claimed the benefit of enhancement
of age of superannuation on the ground that Udam Vikas Sansthan, Bhopal is
fully government aided society and working for the government and therefore,
the petitioner is entitled for the benefit of enhancement of age of
superannuation.
2. Per contra, respondent-Sansthan has submitted that Sansthan is registered
under the Society Registry Karan Act and is an independent body though the
Sansthan is fully government aided but until and unless the enhancement of
superannuation is adopted by the Sansthan whose financial condition is also not
good, no benefit can be extended to the petitioner and the services of the
petitioner were not absorbed by the State Government, therefore, the petitioner
cannot be treated as an employee of State Government.
3. Learned counsel for the respondent/Sansthan relied on the order passed by
coordinate Bench in the matter of Ramnaresh Dubey vs. State of M.P. and
others passed W.P. No.1020/2020 on 9.3.2021, whereby in the similar situation
the coordinate Bench has held that Udam Vikas Sansthan has not adopted the
enhancement of age of superannuation and therefore, in the absence of adoption
of the circular of State Government issued in respect of extension of age, no
benefit of age can be extended to the employee of the Sansthan.
4. The relevant portion of the order reads as under:-
4. Having heard the learned counsel for the parties and on perusal of
the record, it is noticed that the petitioner is an employee of the
respondent No.3 i.e. Udhyami Vikas Sansthan. The reply of the
respondent No.3 reveals that it is a Society registered under the
provisions of the Societies Registration Act, 1973 and it has its own bye-
laws, which govern the age of retirement and thus the respondent No.3
has not taken any decision to extend the age of retirement. Para 8 of the
reply reveals that on account of the financial constraint and unsound
condition, the respondent No.3 has not adopted the circular of the State
Government in respect of extension of age. The Division Bench of this
Court in the matter of Gend Lal (supra) considering the issue of
extension of the retirement age of the employees of OILFED has held
that :
"17. A Division Bench of this Court in Ashutosh Pandey Vs.
Managing Director, MPRTC & others reported in 2020 (3) MPLJ
590, opined as under:
"12. Apart from this, the fixation of age of superannuation is
within the domain of the employer. In the case of B. Bharat Kumar
and others vs. Osmania University and others, reported in (2007)
11 SCC 58, the Apex Court held that in respect of the fixation of
age of superannuation, it is a policy decision and the same is
within the wisdom of the Rule Making Authority and the judicial
review in such administrative action is not called for. In the case of
Nagaland Senior Government Employees Welfare Association and
others vs. State of Nagaland and others reported in (2010) 7 SCC
643 the Apex Court has taken a similar view and held that the
policy decision in regard to the age of retirement is within the
domain of the Rule Making Authority and in such matters, the
judicial review is limited and circumscribed.
13. The Circulars and amendment in the Fundamental Rules
and Madhya Pradesh Ardhavarshiki Ayu Adhiniyam enhancing
the age of superannuation of the Government Servants are not ipso
facto applicable to the employees of the Corporation. There is no
material to establish that the petitioners have been absorbed in the
Government Service. Hence, they cannot claim equality with the
Government employees in respect of age of superannuation. The
Corporation has not adopted the Circular or amendment made in
the Fundamental Rules regarding age of superannuation of the
State Government employees.
[Emphasis Supplied]"
18. In view of the principle laid down in this Division Bench
judgment, it is clear that employees of Corporation cannot claimed
same age of retirement which is prescribed for the State
Government employees unless he is duly absorbed as State
Government employee.
19. It cannot be doubted that the Adhiniyam of 1967 is
applicable to the Civil Post holders of Government of Madhya
Pradesh. The Adhiniyam of 1967 is not applicable to the
employees of Corporation. The circular dated 27.04.2018 reads as
under :-
Ek/;izns'k 'kklu
foRr foHkkx
oYyHk Hkou] ea=ky;] Hkksiky
dzekad vkj&203@1018@2018@fu;e@/kkj Hkksiky] fnukad 27-04-2018
izfr]
'kklu ds leLr foHkkx]
v/;{k jktLo eaMy] Xokfy;j]
leLr [email protected]]
uxjh; fudk;@dkiksZjs'ku]
leLr ftyk/;{k]
e/;izns'kA
fo"k; %& [email protected] ds lsok;qDrksa dh vf/kokf"kZdh lsokfuo`fRr vk;q 60 o"kZ ls
c< kdj 62 o"kZ fd;s tkus ds laca/k esaA
***
jkT; 'kklu }kjk fnukad 31 ekpZ 2018 dks vf/klwfpr e-iz- 'kkldh; lsod ¼vf/kokf"kZdh&vk;q½
la'kks/ku v/;kns'k 2018 ls jkT; 'kklu ds 'kkldh; lsodksa dh vf/kokf"kZdh ij lsukfuo`fRr dh vk;q
60 o"kZ ls c< kdj 62 o"kZ dh xbZ gSSA
bl ifjizs{; esa ;fn jkT; 'kklu ds [email protected]] Lo;a ds lqlaxr lsok fu;eksa esa mi;qZDr
vuqlkj lsokfuo`fRr vk;q ds izko/kku dks lfEefyr djuk pkgrs gSa rc Lo;a dh foRrh; fLFkfr]
vko';drk vkfn dks fopkj esa j[krs gq, l{ke Lrj ls vuq'kalk izkIr dj
lacaf/kr iz'kklfud foHkkx ls fu.kZ; izkIr dj ldrs gSaA ijarq] ftu [email protected] dks jkT;
'kklu }kjk cUn fd;k tk pqdk gS vFkok ftuds cUn (Closure/liquidation) djus dh izfØ;k
izo`Rr gS] ,slh laLFkkvksa ds lsok;qDrksa dh orZeku vf/kokf"kZdh ij lsokfuo`fRr vk;q esa o`f) ugha dh
tk,A
e-iz- jkT;iky ds uke ls
rFkk vkns'kkuqlkj
¼iadt vxzoky½
izeq[k] lfpo
e0iz0 'kklu] foRr foHkkx"
[Emphasis Supplied]
A conjoint reading of provisions of Adhiniyam of 1976 and the
circular shows that the un-absorbed employees of OILFED cannot
claim any right of continuance in employment till attaining the age
of 62 years.
20. So far the argument that the subsequent Bench which took
the different view than the view taken in Ashok Thakur (supra)
should have referred the matter to Larger Bench is concerned,
suffice it to say that in Jabalpur Bus Operator Association (supra)
the Special Bench opined that the decision of earlier Bench unless
distinguished by later Bench is binding on the subsequent Bench.
The earlier judgment in Ashok Thakur (supra) which is followed in
Daood Ahmed Khan (supra) was considered by subsequent Bench
and distinguished in correct prospective. The subsequent Bench
considered the judgment of Ashok Thakur (supra) and Daood
Ahmed Khan (supra) and distinguished its by holding that the
Adhivarshiki Ayu Adhiniyam is not applicable to employees of
OILFED. The petitioners therein have not been absorbed and they
have not raised any dispute qua their absorption in the writ
petition. Interestingly, both the parties placed reliance on the
judgment of Supreme Court in Avas Vikas Sanstha (supra) which
relates to claim of absorption.
We are afraid, this point is beyond the lis in these batch of writ
appeals. Indeed, we are only examining the status of original
petitioners which was prevailing at the time of filing of writ petition
and whether on the basis of said status, they had any claim for
continuing upto 62 years of age. Thus, the judgment is of no
relevance in the present matters. So far the argument of Shri
Chourasia is concerned, it is of same nature regarding claim of
absorption. The claim of absorption is not the subject matter of
debate in these appeals.
21. We find no illegality in the subsequent orders passed by
Single Bench in D.K. Rathore (supra) and Gend Lal (supra) and
said orders are affirmed. The impugned orders of the learned
Single Benches in remaining writ appeals are set aside."
5. For the detailed reasons, which are already assigned by the
Division Bench in the aforesaid judgment and also considering the fact
that no rule, regulation or provision has been pointed out by the counsel
for the petitioner that the employees of the respondent No.3 are entitled
to continue upto the age of 62 years and also considering the fact that
the petitioner is not a Government employee, I am of the opinion that no
error has been committed by the respondent No.3 in passing the
impugned order dated 27.08.2019 and superannuating the petitioner
on attaining the age of 60 years w.e.f. 31.01.2020. Hence, no case for
interference is made out.
5. Respondents further relied on the order passed by coordinate Bench in the
matter of Smt. Phool Mishra vs. State of M.P. and others, in W.P.
No.6617/2023 on 5.1.2024, whereby the coordinate Bench relying upon the
judgment of Division Bench delivered in the matter of Ashutosh Panndey vs.
Managing Director, MRTC and others, 2020 (3) MPLJ 590, dismissed the
petition. The relevant portion of the order reads as under:-
"After hearing learned counsel for the parties and going through
the record, it is evident that petitioner's parent department is Udyami
Vikas Sansthan. Vide order Annexure P-1, certain employees including
the petitioner were attached to mapset. There is no order of absorption
of the petitioner in the mapset and, therefore, once there was an order of
attachment only and not of absorption, petitioner is required to show
from the record that Board of Directors of the Udyami Vikas Sansthan
which is her parent department had taken a decision to enhance the age
of superannuation from 60 to 62 years.
In this regard, the judgment rendered by the Division Bench of
this High Court on 8/12/2020 Gend Lal Vs. State of Madhya Pradesh
and others and connected batch of writ appeals are relevant so also the
judgment passed by the coordinate Bench on 9/03/2021 in W.P. No.
1020/2020 Ramnaresh Dubey Vs. State of M.P. and others is relevant.
In the case of Ashutosh Pandey Vs. Managing Director, MPRTC
and others 2020 (3) MPLJ 590, the Division Bench has held as under:-
''12. Apart from this, the fixation of age of superannuation
is within the domain of the employer. In the case of B.
Bharat kumar v. Osmania University, reported in (2007) 11
SCC 58, the Apex Court held that in respect of the fixation
of age of superannuation, it is a policy decision and the
same is within the wisdom of the Rule Making Authority
and the judicial review in such administrative action is not
called for. In the case of Nagaland Senior Government
Employees Welfare Association v. State of Nagaland,
reported in (2010) 7 SCC 643 the Apex Court has taken a
similar view and held that the policy decision in regard to
t h e age of retirement is within the domain of the Rule
Making Authority and in such matters, the judicial review is
limited and circumscribed.
1 3 . The Circulars and amendment in the Fundamental
Rules and Madhya Pradesh Ardhavarshiki Ayu Adhiniyam
enhancing the age of superannuation of the Government
Servants are not ipso facto applicable to the employees of
the Corporation. There is no material to establish that the
petitioners have been absorbed in the Government service.
Hence, they cannot claim equality with the Government
employees in respect of age of superannuation. The
Corporation has not adopted the Circular or amendment
made in the Fundamental Rules regarding age of
superannuation of the State Government employees.''
Thus, it is evident that petitioner being failed to prove that there
was any provision made for enhancing the age of superannuation to 62
years and also considering the fact that petitioner is not a Government
employee, I am of the opinion that respondents have not committed an
error in passing the impugned order and superannuating the petitioner
on attaining the age of 60 years w.e.f. 31/03/2023."
6. Learned counsel for the respondent submits that in view of the fact that the
respondent Sansthan has not adopted the circular of the State Government
issued for the purpose of enhancement of age of superannuation, no relief can
be granted to the petitioner.
7. Learned Government Advocate appearing on behalf of State supported the
argument advanced by the counsel for the respondent/Sansthan and further
submits that the State of M.P. has issued the Circular and liberty was granted
to the Corporation/Society Mandal Nigam to adopt the Circular issued by the
State Government for the purpose of enhancement of age of superannuation,
after obtaining the prior permission of the State Government and until and
unless the Sansthan has adopted the Circular, no relief can be extended to the
petitioner.
8. Considering the argument advanced by the counsel for the parties, it is not
in dispute that the petitioner is an employee of Udam Vikas Sansthan, Bhopal,
which is a society registered under the provisions of Societies Registration Act,
1973 and therefore, having an independent identity and there is nothing on
record to demonstrate that the society has adopted the circular of the State
Government issued in respect of extension of age, therefore, in view of the
order passed by the coordinate Benches in the matter of Ramnaresh (supra) and
Smt. Phool Mishra (supra), the petitioner is not entitled for benefit of the
circular. Consequently, the present petition is failed and admission is declined.
9. Accordingly, the present petition is dismissed.
(VINAY SARAF)
JUDGE
irfan
