Md. Musa Kazmi v. State Of Bihar — 1997 DIGILAW 127 (PAT)

Judgment S.N.Jha, J. 1. The controversy in this writ petition relates to the age of superannuation of the petitioner as Finance Officer of the Bihar Intermediate Council (called the Intermediate Council, in short). The background in which the controversy has arisen may briefly be stated as follows: The petitioner was initially appointed in the Bhagalpur University as Junior Auditor on 24th March, 1965. He joined the L.N. Mithila University as Budget and Accounts officer on 1st May, 1973. He was appointed as Finance Officer in the intermediate Council for a period of six months in anticipation of concurrence of the Bihar Public Service Commission up to 7th March, 1981. Regular appointment to the said post was made on receipt of the recommendation of the Commission on 14th April, 1983. He continued to function on the post until the Intermediate Council decided to superannuate him on attaining the age of 60 years w.e.f. 31st January, 1997. There is no dispute about the date of birth in this case. The only dispute is as to what is the age of superannuation. According to the petitioner, the age of superannuation of the officers and staff of the Intermediate Council is 62 years, as in the case of the officers and staff of the Universities governed by the Bihar Universities Act, 1976 (called the Universities Act, in short) and therefore, he is entitled to continue up to January, 1999; according to the respondents, the age of superannuation is 60 years and the petitioner has rightly been retired on 31st January, 1997. 2. Mr. Tara Kant Jha, learned Counsel for the petitioner has contended that by reason of the provisions of Sec. 27 of the Intermediate Council Act, the same service conditions as applicable to employees of the Universities, are applicable to the employees of the Intermediate Council. And since Sec. 67 of the Universities Act provides for the superannuation age of 62 years for the Universitys employees, the petitioner cannot be retired at the age of 60 years. According to Mr. Shashi Anugrah Narain, learned Counsel for the Intermediate Council, the superannuation age of 62 years is meant for such employee (of the Universities) who was appointed prior to the commencement of the Universities Act and "is in the service of the University". According to Mr. Shashi Anugrah Narain, learned Counsel for the Intermediate Council, the superannuation age of 62 years is meant for such employee (of the Universities) who was appointed prior to the commencement of the Universities Act and "is in the service of the University". Since the petitioner had left the University i.e. L.N. Mighila University in 1981/1983 itself and was no longer in the service of the University, he can not claim the superannuation age of 62 years. 3. It is not in dispute that the Bihar Intermediate Council Act, 1992 (called the Intermediate Council Act, in short ) does not contain any provision regarding the service conditions of the officers and staff of the Intermediate Council. Sec. 27 of the Intermediate Council Act merely provides that their service conditions shall be the same as those of the officers and staff of the University, as prescribed by the State Government. So far as the age of superannuation of the officers and staff of the Universities is concerned, the relevant provision is to be found in Sec. 67 (a) of the Universities Act. 4. Since the Controversy centres round interpretation of Sec. 67 of the Universities Act it would be apt to quote the Section, so far as relevant, at this very stage, as here under: save as otherwise expressly provided in this Act the date of retirement of a teaching employee of the University or of a College with effect from the 1st April, 1986 shall be the date on which he attains the age of 62 years. The date of retirement of non-teaching employees (other than inferior servants) shall be the date on which he attains the age of 60 years, but the date of retirement of such non-teaching employee who is in the service of the University prior to the commencement of this Act shall be the date on which he attains the age of 62 years. It may be stated hare that the provision quoted above, as it stands now, is the amended provision. It may be stated hare that the provision quoted above, as it stands now, is the amended provision. Prior to the amendment by Sec. 21 of the Bihar State Universities (Amendment) Act, 1990 (Bihar Act 3 of 1990), the relevant part of Clause (a) of Sec. 67 was in these terms: save as otherwise expressly provided in this Act, the date of retirement of any teaching or non-teaching employee, other than inferior servants, of the University or any College, shall be the date on which he attains the age of sixty years. 5. It would thus appear that while Sec. 67 (a) initially provided for a common superannuation age with respect to teachers and non-teaching employees, the amended section treats them on somewhat different footing. The superannuation age of teachers has been increased to 62 years with effect from 1st April, 1986. The age of superannuation of the non-teaching employees also has been raised to 62 years with effect from 1st April, 1986. the age of superannuation of the non-teaching employees also has been raised to 62 years but only with respect to such employees who are in service of the University (since) prior to commencement of the Act. Those who are appointed in future i.e. after commencement of the Act, their age of superannuation shall be 60 years. 6. In response to query from the Court as to the meaning of the term "this Act" occurring in the clause "commencement of this Act" in Sec. 67-whether it means the parent i.e. 1976 Act or the Amendment Act i.e. Bihar Act 3/90-both counsel for the petitioner and the Intermediate Council submitted that it means the parent Act. I doubt whether, in the context, the term "this Act" refers to the parent Act. From Sec. 2 of Bihar State Universities (Amendment) Act, 1990 ( Bihar State Universities Act, 1976 (Bihar Act 23/76) has been made as UKTA ADHINIYAM, i.e. the said Act. In Sec. 21 of the Amendment Act, by which Sec. 67 of the parent Act has been amended, the term used is EES ADHINIYAM, i.e. this Act: It is the amended provision which now finds place in the Act, Further, it would appear that increase of superannuation age of teacher (to 62 years) has been made retrospectively with effect from 1st April 1986. In terms of the second proviso to Sec. 21 of the Amendment Act (Bihar Act 3/90), even those teachers who had superannuated on reaching the age of 60 years or before the promulgation of the Bihar State Universities (Amend.) Ordinance (No. 2/90) were treated to be in service as if they had never retired. In the case of non-teaching employees, however, increased superannuation age was not made retrospective. Only those who were in the service of the University on the date when the Ordinance/Act came in to force, were to be entitled to its benefit. The idea clearly was to make two categories. Those who are already in service and those who are appointed in future, after commencement of the Amendment Ordinance /Act. For the latter category, the superannuation age was as before, namely 60 years, for the employees who were already appointed and in service, when the Amendment 3rdinance/Act came into force, coming in the first category, the superannuation age was increased to 62 years. In my opinion, therefore, the impression "this " means the Amendment Act i.e. Bihar Act 3 of 1990. It may be mentioned were that Bihar Act 3/90 came in to force on 31st January, 1990 )The date of commencement of the corresponding Ordinance is not known, but that would take no difference for the purpose of this case). 7. in this background it is to be examined as to where does the petitioner stand. he admittedly was not in the service of the University as on 31st January, 1990 when Bihar Act 3/90 came in to force. He had left the University way back in 1.981 itself and has been in the regular employment of the Intermediate Council since 14th April, 1983. There is no dispute that it was a fresh appointment and by reason thereof his relationship with the L.N. Mithila University stood severed. The question nevertheless arise for consideration is as to what would be deemed to be his service conditions including the age of superannuation. Mr. Shashi Anugrah Narain pointed out that as on the date of appointment of the petitioner in the Intermediate Council there was no provision like Sec. 27 of the Intermediate Council Act. The question nevertheless arise for consideration is as to what would be deemed to be his service conditions including the age of superannuation. Mr. Shashi Anugrah Narain pointed out that as on the date of appointment of the petitioner in the Intermediate Council there was no provision like Sec. 27 of the Intermediate Council Act. Although the Intermediate Council was established in 1980 it was being run on the basis of ordinances (until the Intermediate Council Act was enacted in 1992) and in none of the preceding ordinances any corresponding provision was there It was for the first time in the Act i.e. Intermediate Council Act, 1992, that provision was made to provide the same service conditions to the officers and staff of the University as applicable to the University employees. 8. I am afraid, the submission of Mr. Narain does not answer the question a all. From perusal of the office order dated 14th April, 1983 by which this petitioner was appointed as Finance Officer in the intermediate Council of regular basis, it appears that the appointment was made "subject to hi agreeing to the service conditions of the Council in vogue or to be modified b; the Council from time to time". Admittedly, no service conditions were frame by the Intermediate Council at any stage. In view of Sec. 27, however, it is not necessary to go into that aspect in detail. There cannot be any dispute the by reason of those provisions, so far as the superannuation age is concern Sec. 67 of the Universities Act is now applicable to the officers and staff the Intermediate Council. Even the Intermediate Council has retired to petitioner on attaining the age of 60 years in view of and on the basis provisions of Sec. 67. The dispute relates only to interpretation of Section or, to be more precise which clause/part of that Section is applicable to the petitioner. 9. Once the factual position is accepted that Intermediate Council has n framed the service conditions of its employees nor has fixed the superannuation age, it is to be held that whatever be the service conditions the non-teaching employees of the University shall ipso facto be applicant to the officers and staff of the Intermediate Council as well. 9. Once the factual position is accepted that Intermediate Council has n framed the service conditions of its employees nor has fixed the superannuation age, it is to be held that whatever be the service conditions the non-teaching employees of the University shall ipso facto be applicant to the officers and staff of the Intermediate Council as well. When t petitioner joined the Intermediate Council he was told that he would be subject to the service conditions in vogue or modified from time to time. It was open the Intermediate Council to lay down the service conditions by administration orders or by making provision in Act. Sec. 27 of the Intermediate Council J has to be understood in that light and given effect to. 10. The normal age of superannuation is 58 years not only in the government service but in different Boards, Corporations etc. It is only by virtue of statute provisions of Sec. 67 of the Universities Act that the teachers and m teaching staff of the Universities enjoy a higher superannuation age. An have no doubt in my mind that it is by virtue of the same very provisions Sec. 67 that the Intermediate Council allowed the petitioner to continue beyond the age of 58 years treating him at par with employees of Universities. The moot point for consideration thus is whether the first class of the second part of Section 67(a) or the second clause will be applicable. As stated above, the section has put the non-teaching employees of the University in two categories for the purpose of superannuation age. While with respect to employees appointed after the commencement of the Ordinance/Act the superannuation age is 60 years, as before, with respect to employees already in the service of the University on the date of commencement of the Ordinance/Act, it provides for an increased superannuation age of 62 years. The petitioner is being treated as coming in the first clause on the ground that he is not in the service of the University and increased superannuation age of 62 years is for the benefit of only such employees who are in service of the university since prior to the commencement of the Act. 11. The submission of Mr. The petitioner is being treated as coming in the first clause on the ground that he is not in the service of the University and increased superannuation age of 62 years is for the benefit of only such employees who are in service of the university since prior to the commencement of the Act. 11. The submission of Mr. Narain that the petitioner is not entitled to the increased age of superannuation of 62 years as he is not "in the service of the University" is too technical to be accepted. It should be kept in mind that the provisions of Sec. 67 have been enacted with respect to the teaching and non-teaching employees of the Universities governed by the Universities Act. These provision have been made applicable to the officers and staff of the Intermediate Council by virtue of another Act, namely the Intermediate Council Act which came into force in 1992 after the coming into force of amended provisions of Sec. 67. Simply because Sec. 67 mentions about employees who are in the service of the University, i do not think the existing officers and staff of the intermediate Council can be denied the benefits of the same. Surely, the framers of the Universities Act did not know, when Sec. 67 was being enacted, that those provisions will be made applicable to employees of another independent statutory body later and could not have mentioned about those employees as well. In other words, Sec. 67 of the Universities Act which in terms in applicable to the employees of the University, by reason of express provisions of Sec. 27 of the Intermediate Council Act and also be necessary implication, would also be deemed to be applicable to the employees of the Intermediate Council. Sec. 27 gives parity of status to its officers and employees with the employees of the University and the provision has to be given full effect. 12. It would not be out of place to mention here that the petitioner has been getting the same scale of pay, as revised from time to time, admissible to the Finance Officers in the Universities. There is nothing on the record to show that he has been treated on different footing from the officers of the Universities as regard other conditions of service. There is nothing on the record to show that he has been treated on different footing from the officers of the Universities as regard other conditions of service. Since the petitioner was in the service of the Council on the date Bihar Act 3 of 1990 came in to force 31st January 1990, he is entitled to the benefit of the increased superannuation age of 62 years. 13. In the above premises, I am constrained to hold that the decision of the intermediate Council to retire the petitioner on attaining the age of 60 years on 31st January, 1997 is not correct in law. The impugned decision is accordingly quashed. The petitioner shall be deemed to be in the service of the Intermediate Council. 14. The writ petition accordingly stands allowed. No cost.